In what way can gender-specific violence be asserted as a reason for granting asylum or as a factor that necessitates the prohibition of deportation / the classification as a case of hardship?

To which gender-specific forms of violence does the respective regulation refer?

In the context of flight, gender-specific violence can occur in different situations, so that its consideration during the asylum procedure varies greatly in Germany:

Gender-specific persecution in the country of origin

Only violence suffered or gender-specific perse-cution in the country of origin can lead to the recognition of refugee status or subsidiary pro-tection status. Because, according to the Gene-va Refugee Convention, “the term ‘refugee’” applies to any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a par-ticular social group or political opinion, is out-side the country of his nationality and is unableor, owing to such fear is unwilling to avail himself of the protection of that country”. Hence the issue at stake is persecution in the country of origin. Persecution also implies forms of gender-specific violence.

In the course of interpreting and further specifying the reasons for persecution given in the Geneva Convention, gender-based persecution has been assigned to “membership of a particular social group”. In doing so, the focus was at first on the gender-based persecution of women. The category of gender-specific persecution of refugees primarily pertained to sexualised violence committed by members of the state while exercising their authority in the country of origin (including torture, rape during police custody or incarceration). It also includes persecution measures by the state against women that are solely based on gender.

Such measures comprise, among others things, genital mutilation, forced marriage, or threats based on the supposed ‘westernisation of women’.[1] If the danger of persecution does not emanate from the state but from husbands, neighbours or other community members, then it has to be determined in a second step that the persecution is substantial and that the state and the organs of state are unwilling or inca-pable of protecting against such persecution.

However, the jurisdiction is inconsistent in this regard. In the case of forced marriage, for example, courts have reached all kinds of decisions, sometimes considering it an obstacle to deportation, sometimes as crucial to the recognition of refugee status.

What is important for the persons concerned is that the establishment of refugee protection status or obstacles to deportation is always an individual case-by-case decision and that it is impossible to make generalizations in this context.

Even if, for example, there are court cases in which a ‘considerable westernisation’[2] of wo- men from Afghanistan has been recognised as a risk of persecution, such a decision cannot be expected from all courts and depends, moreover, on the particular person who is responsible for making the decision.

The persecution of LGBTI based on their sexual orientation or gender identity has meanwhile also been considered an indisputable reason for persecution owing to “membership of a particular social group”.

Gender-specific violence during flight / in the host country

Gender-specific persecution during flight or in the host country, on the other hand, cannot result in the recognition of refugee status. However, if such persecution involves considerable physical and/or psychological suffering in such a way as to threaten the life (survival) of the person concerned, this might entail that a prohibition of deportation is declared and that the person concerned is granted a residence permit.

Footnote

[1] This term is derived from its use in jurisdictional practice.

[2] Verdict by the Higher Administrative Court Munich, September 21, 2015 - ref. no. 9 LB; verdict by Administrative Court Munich, August 14, 2007, ref. no. M 23 K 07.50455; verdict by the Asylum Court Austria, March 9, 2012, ref. no. C2 422385-1/2011/8E